Mr. McConnell (for
himself and Mr. Paul) introduced the
following bill; which was read twice and referred to the
Committee on Environment and Public
Works

A BILL

To amend the Federal Water Pollution Control Act to
provide guidance and clarification regarding issuing new and renewal permits,
and for other purposes.

1.

National Pollutant Discharge
Elimination System

(a)

Applicability of
guidance

Section 402 of the Federal Water Pollution Control Act
(33 U.S.C. 1342) is amended by adding at the end the following:

(s)

Applicability of
guidance

(1)

Definitions

In
this subsection:

(A)

Guidance

(i)

In
general

The term guidance means draft, interim, or
final guidance issued by the Administrator.

(ii)

Inclusions

The
term guidance includes—

(I)

the comprehensive
guidance issued by the Administrator and dated April 1, 2010;

(II)

the proposed
guidance entitled Draft Guidance on Identifying Waters Protected by the
Clean Water Act and dated April 28, 2011;

(III)

the final
guidance proposed by the Administrator and dated July 21, 2011; and

(IV)

any other
document or paper issued by the Administrator through any process other than
the notice and comment rulemaking process.

(B)

New
permit

The term new permit means a permit covering
discharges from a structure—

(i)

that is issued
under this section by a permitting authority; and

(ii)

for which an
application is—

(I)

pending as of the
date of enactment of this subsection; or

(II)

filed on or after
the date of enactment of this subsection.

(C)

Permitting
authority

The term permitting authority
means—

(i)

the Administrator;
or

(ii)

a
State, acting pursuant to a State program that is equivalent to the program
under this section and approved by the Administrator.

(2)

Permits

(A)

In
general

Notwithstanding any other provision of law, in making a
determination whether to approve a new permit or a renewed permit, the
permitting authority—

(i)

shall base the
determination only on compliance with regulations issued by the Administrator
or the permitting authority; and

(ii)

shall not base
the determination on the extent of adherence of the applicant for the new
permit or renewed permit to guidance.

(B)

New
permits

If the permitting
authority does not approve or deny an application for a new permit by the date
that is 270 days after the date of receipt of the application for the new
permit, the applicant may operate as if the application were approved in
accordance with Federal law for the period of time for which a permit from the
same industry would be approved.

(C)

Substantial
completeness

In determining whether an application for a new
permit or a renewed permit received under this paragraph is substantially
complete, the permitting authority shall use standards for determining
substantial completeness of similar permits for similar facilities submitted in
fiscal year
2007.

.

(b)

State permit
programs

(1)

In
general

Section 402 of the Federal Water Pollution Control Act
(33 U.S.C. 1342) is amended by striking subsection (b) and inserting the
following:

(b)

State permit
programs

(1)

In
general

At any time after the
promulgation of the guidelines required by section 304(I)(2), the Governor of
each State desiring to administer a permit program for discharges into
navigable waters within the jurisdiction of the State may submit to the
Administrator—

(A)

a full and complete description of the
program the State proposes to establish and administer under State law or under
an interstate compact; and

(B)

a statement from the attorney general (or
the attorney for those State water pollution control agencies that have
independent legal counsel), or from the chief legal officer in the case of an
interstate agency, that the laws of the State, or the interstate compact, as
applicable, provide adequate authority to carry out the described
program.

(2)

Approval

The Administrator shall approve each
program for which a description is submitted under paragraph (1) unless the
Administrator determines that adequate authority does not exist—

obtaining a
permit by misrepresentation or failure to disclose fully all relevant facts;
and

(III)

a change in any
condition that requires either a temporary or permanent reduction or
elimination of the permitted discharge; and

(iv)

control the
disposal of pollutants into wells;

(B)(i)

to issue permits that
apply, and ensure compliance with, all applicable requirements of section 308;
or

(ii)

to inspect, monitor, enter, and
require reports to at least the same extent as required in section 308;

(C)

to ensure that the
public, and any other State the waters of which may be affected, receives
notice of each application for a permit and an opportunity for a public hearing
before a ruling on each application;

(D)

to ensure that the
Administrator receives notice and a copy of each application for a
permit;

(E)

to ensure that any
State (other than the permitting State), whose waters may be affected by the
issuance of a permit may submit written recommendations to the permitting State
and the Administrator with respect to any permit application and, if any part
of the written recommendations are not accepted by the permitting State, that
the permitting State will notify the affected State and the Administrator in
writing of the failure of the State to accept the recommendations, including
the reasons for not accepting the recommendations;

(F)

to ensure that no
permit will be issued if, in the judgment of the Secretary of the Army acting
through the Chief of Engineers, after consultation with the Secretary of the
department in which the Coast Guard is operating, anchorage and navigation of
any of the navigable waters would be substantially impaired by the issuance of
the permit;

(G)

to abate
violations of the permit or the permit program, including civil and criminal
penalties and other means of enforcement;

(H)

to ensure that any
permit for a discharge from a publicly owned treatment works includes
conditions to require the identification in terms of character and volume of
pollutants of any significant source introducing pollutants subject to
pretreatment standards under section 307(b) into the treatment works and a
program to ensure compliance with those pretreatment standards by each source,
in addition to adequate notice, which shall include information on the quality
and quantity of effluent to be introduced into the treatment works and any
anticipated impact of the change in the quantity or quality of effluent to be
discharged from the publicly owned treatment works, to the permitting agency
of—

(i)

new introductions
into the treatment works of pollutants from any source that would be a new
source as defined in section 306 if the source were discharging
pollutants;

(ii)

new introductions
of pollutants into the treatment works from a source that would be subject to
section 301 if the source were discharging those pollutants; or

(iii)

a substantial
change in volume or character of pollutants being introduced into the treatment
works by a source introducing pollutants into the treatment works at the time
of issuance of the permit; and

(I)

to ensure that any
industrial user of any publicly owned treatment works will comply with sections
204(b), 307, and 308.

(3)

Administration

Notwithstanding
paragraph (2), the Administrator may not disapprove or withdraw approval of a
program under this subsection on the basis of the following:

(A)

The failure of the
program to incorporate or comply with guidance (as defined in subsection
(s)(1)).

(B)

The implementation of a water quality
standard that has been adopted by the State and approved by the Administrator
under section
303(c).

.

(2)

Conforming
amendments

(A)

Section 309 of the
Federal Water Pollution Control Act (33 U.S.C. 1319) is amended—

(i)

in
subsection (c)—

(I)

in paragraph
(1)(A), by striking 402(b)(8) and inserting
402(b)(2)(H); and

(II)

in paragraph
(2)(A), by striking 402(b)(8) and inserting
402(b)(2)(H); and

(ii)

in
subsection (d), in the first sentence, by striking 402(b)(8) and
inserting 402(b)(2)(H).

(B)

Section 402(m) of
the Federal Water Pollution Control Act (33 U.S.C. 1342(m)) is amended in the
first sentence by striking subsection (b)(8) of this section and
inserting subsection (b)(2)(H).

(c)

Suspension of
Federal program

Section 402(c) of the Federal Water Pollution
Control Act (33 U.S.C. 1342(c)) is amended—

(1)

by redesignating
paragraph (4) as paragraph (5); and

(2)

by inserting after
paragraph (3) the following:

(4)

Limitation on
disapproval

Notwithstanding paragraphs (1) through (3), the
Administrator may not disapprove or withdraw approval of a State program under
subsection (b) on the basis of the failure of the following:

(A)

The failure of the program to incorporate
or comply with guidance (as defined in subsection (s)(1)).

(B)

The implementation
of a water quality standard that has been adopted by the State and approved by
the Administrator under section
303(c).

not later than 90
days after the date on which the Administrator receives notification under
subsection (b)(2)(E), the Administrator objects in writing to the issuance of
the permit; or

(ii)

not later than 90
days after the date on which the proposed permit of the State is transmitted to
the Administrator, the Administrator objects in writing to the issuance of the
permit as being outside the guidelines and requirements of this
Act.

;

(2)

in the second
sentence, by striking Whenever the Administrator and inserting
the following:

(B)

Requirements

If
the Administrator

;
and

(3)

by adding at the
end the following:

(C)

Exception

The
Administrator shall not object to or deny the issuance of a permit by a State
under subsection (b) or (s) based on the following:

(i)

Guidance, as that
term is defined in subsection (s)(1).

(ii)

The Administrator’s interpretation of a
water quality standard that has been adopted by the State and approved by the
Administrator under section
303(c).

.

2.

Permits for
dredged or fill material

(a)

In
general

Section 404(a) of the
Federal Water Pollution Control Act (33 U.S.C. 1344(a)) is amended—

(1)

by striking the section heading and all
that follows through Sec. 404. (a) The Secretary may issue and
inserting the following:

404.

Permits for
dredged or fill material

(a)

Permits

(1)

In
general

The Secretary may
issue

;
and

(2)

by adding at the
end the following:

(2)

Deadline for
approval

(A)

Permit
applications

(i)

In
general

Except as provided in clause (ii), if an environmental
assessment or environmental impact statement, as appropriate, is required under
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the
Secretary shall—

(I)

begin the process
not later than 90 days after the date on which the Secretary receives a permit
application; and

(II)

approve or deny
an application for a permit under this subsection not later than the latter
of—

(aa)

if
an agency carries out an environmental assessment that leads to a finding of no
significant impact, the date on which the finding of no significant impact is
issued; or

(bb)

if
an agency carries out an environmental assessment that leads to a record of
decision, 15 days after the date on which the record of decision on an
environmental impact statement is issued.

(ii)

Processes

Notwithstanding
clause (i), regardless of whether the Secretary has commenced an environmental
assessment or environmental impact statement by the date described in clause
(i)(I), the following deadlines shall apply:

(I)

An environmental
assessment carried out under the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.) shall be completed not later than 1 year after the
deadline for commencing the permit process under clause (i)(I).

(II)

An environmental
impact statement carried out under the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.) shall be completed not later than 2 years after
the deadline for commencing the permit process under clause (i)(I).

(B)

Failure to
act

If the Secretary fails to act by the deadline specified in
clause (i) or (ii) of subparagraph (A)—

(i)

the application,
and the permit requested in the application, shall be considered to be
approved;

(ii)

the Secretary
shall issue a permit to the applicant; and

(iii)

the permit shall
not be subject to judicial
review.

.

(b)

State Permitting
Programs

(1)

Authority of EPA
Administrator

Section 404(c)
of the Federal Water Pollution Control Act (33 U.S.C. 1344(c)) is amended by
striking (c) and inserting the following:

(c)

Authority of EPA
Administrator

(1)

Possible
prohibition of specification

Until such time as the Secretary has issued
a permit under this section, the Administrator is authorized to prohibit the
specification (including the withdrawal of specification) of any defined area
as a disposal site, and he is authorized to deny or restrict the use of any
defined area for specification (including the withdrawal of specification) as a
disposal site, whenever he determines, after notice and opportunity for public
hearings, that the discharge of such materials into such area will have an
unacceptable adverse effect on municipal water supplies, shellfish beds and
fishery areas (including spawning and breeding areas), wildlife, or
recreational areas. Before making such determination, the Administrator shall
consult with the Secretary. The Administrator shall set forth in writing and
make public his findings and his reasons for making any determination under
this subsection.

(2)

Authority of
State permitting programs

Paragraph (1) shall not apply to any
permit if the State in which the discharge originates or will originate does
not concur with the Administrator’s determination that the discharge will
result in an unacceptable adverse effect as described in paragraph
(1).

.

(c)

State
Programs

The first sentence
of section 404(g)(1) of such Act (33 U.S.C. 1344(g)(1)) is amended by striking
for the discharge and inserting for some or all of the
discharges.

3.

Impacts of EPA
regulatory activity on employment and economic activity

(a)

Analysis of
impacts of actions on employment and economic activity

(1)

Analysis

Before taking a covered action, the
Administrator shall analyze the impact, disaggregated by State, of the covered
action on employment levels and economic activity, including estimated job
losses and decreased economic activity.

(2)

Economic
models

(A)

In
general

In carrying out paragraph (1), the Administrator shall
utilize the best available economic models.

(B)

Annual GAO
report

Not later than December 31st of each year, the Comptroller
General of the United States shall submit to Congress a report on the economic
models used by the Administrator to carry out this subsection.

(3)

Availability of
information

With respect to any covered action, the Administrator
shall—

(A)

post the analysis
under paragraph (1) as a link on the main page of the public Internet Web site
of the Environmental Protection Agency; and

(B)

request that the Governor of any State
experiencing more than a de minimis negative impact post such analysis in the
Capitol of such State.

(b)

Public
hearings

(1)

In
general

If the Administrator
concludes under subsection (a)(1) that a covered action will have more than a
de minimis negative impact on employment levels or economic activity in a
State, the Administrator shall hold a public hearing in each such State at
least 30 days prior to the effective date of the covered action.

(2)

Time, location,
and selection

A public hearing required under paragraph (1) shall
be held at a convenient time and location for impacted residents. In selecting
a location for such a public hearing, the Administrator shall give priority to
locations in the State that will experience the greatest number of job
losses.

(c)

Notification

If the Administrator concludes under
subsection (a)(1) that a covered action will have more than a de minimis
negative impact on employment levels or economic activity in any State, the
Administrator shall give notice of such impact to the State’s Congressional
delegation, Governor, and Legislature at least 45 days before the effective
date of the covered action.

(d)

Definitions

In
this section, the following definitions apply:

(1)

Administrator

The term Administrator means
the Administrator of the Environmental Protection Agency.

(2)

Covered
action

The term covered action means any of the
following actions taken by the Administrator under the Federal Water Pollution
Control Act (33 U.S.C. 1201 et seq.):

(A)

Issuing a regulation, policy statement,
guidance, response to a petition, or other requirement.

(B)

Implementing a new or substantially altered
program.

(3)

More than a de
minimis negative impact

The term more than a de minimis
negative impact means the following:

(A)

With respect to
employment levels, a loss of more than 100 jobs. Any offsetting job gains that
result from the hypothetical creation of new jobs through new technologies or
government employment may not be used in the job loss calculation.

(B)

With respect to
economic activity, a decrease in economic activity of more than $1,000,000 over
any calendar year. Any offsetting economic activity that results from the
hypothetical creation of new economic activity through new technologies or
government employment may not be used in the economic activity
calculation.

4.

Identification of
waters protected by the Clean Water Act

(a)

In
general

The Secretary of the
Army and the Administrator of the Environmental Protection Agency may
not—

(1)

finalize, adopt,
implement, administer, or enforce the proposed guidance described in the notice
of availability and request for comments entitled EPA and Army Corps of
Engineers Guidance Regarding Identification of Waters Protected by the Clean
Water Act (EPA–HQ–OW–2011–0409) (76 Fed. Reg. 24479 (May 2, 2011));
and

(2)

use the guidance
described in paragraph (1), any successor document, or any substantially
similar guidance made publicly available on or after December 3, 2008, as the
basis for any decision regarding the scope of the Federal Water Pollution
Control Act (33 U.S.C. 1251 et seq.) or any rulemaking.

(b)

Rules

The
use of the guidance described in subsection (a)(1), or any successor document
or substantially similar guidance made publicly available on or after December
3, 2008, as the basis for any rule shall be grounds for vacating the
rule.

by redesignating
subparagraphs (A) and (B) as clauses (i) and (ii), respectively;

(2)

by striking
(4) and inserting (4)(A);

(3)

by striking
The Administrator shall promulgate and inserting the
following:

(B)

The Administrator shall
promulgate;

and

(4)

by adding at the
end the following:

(C)

Notwithstanding subparagraph (A)(ii), the
Administrator may not promulgate a revised or new standard for a pollutant in
any case in which the State has submitted to the Administrator and the
Administrator has approved a water quality standard for that pollutant, unless
the State concurs with the Administrator's determination that the revised or
new standard is necessary to meet the requirements of this
Act.

.

(b)

Federal licenses
and permits

Section 401(a) of
such Act (33 U.S.C. 1341(a)) is amended by adding at the end the
following:

(7)

With respect to any discharge, if a State
or interstate agency having jurisdiction over the navigable waters at the point
where the discharge originates or will originate determines under paragraph (1)
that the discharge will comply with the applicable provisions of sections 301,
302, 303, 306, and 307, the Administrator may not take any action to supersede
the
determination.

.

6.

State authority
to identify waters within its boundaries

Section 303 of the Federal Water Pollution
Control Act (33 U.S.C. 1313) is amended by striking subsection (d)(2) and
inserting the following:

(2)(A)

Each State shall submit
to the Administrator from time to time, with the first such submission not
later than 180 days after the date of publication of the first identification
of pollutants under section 304(a)(2)(D), the waters identified and the loads
established under paragraphs (1)(A), (1)(B), (1)(C), and (1)(D) of this
subsection. The Administrator shall approve the State identification and load
or announce his disagreement with the State identification and load not later
than 30 days after the date of submission and if—

(i)

the Administrator approves the
identification and load submitted by the State in accordance with this
subsection, such State shall incorporate them into its current plan under
subsection (e); and

(ii)

the Administrator announces his
disagreement with the identification and load submitted by the State in
accordance with this subsection he shall submit, not later than 30 days after
the date that the Administrator announces his disagreement with the State’s
submission, to such State his written recommendation of those additional waters
that he identifies and such loads for such waters as he believes are necessary
to implement the water quality standards applicable to such waters.

(B)

Upon receipt of the Administrator’s
recommendation the State shall within 30 days either—

(i)

disregard the Administrator’s
recommendation in full and incorporate its own identification and load into its
current plan under subsection (e);

(ii)

accept the Administrator’s
recommendation in full and incorporate its identification and load as amended
by the Administrator’s recommendation into its current plan under subsection
(e); or

(iii)

accept the Administrator’s
recommendation in part, identifying certain additional waters and certain
additional loads proposed by the Administrator to be added to such State’s
identification and load and incorporate the such State’s identification and
load as amended into its current plan under subsection (e).

(C)(i)

If the Administrator
fails to either approve the State identification and load or announce his
disagreement with the State identification and load within the time specified
in this subsection then such State’s identification and load is deemed approved
and such State shall incorporate the identification and load that it submitted
into its current plan under subsection (e).

(ii)

If the Administrator announces his
disagreement with the State identification and load but fails to submit his
written recommendation to the State within 30 days as required by subparagraph
(A)(ii) then such State’s identification and load is deemed approved and such
State shall incorporate the identification and load that it submitted into its
current plan under subsection (e).

(D)

This section shall apply to any
decision made by the Administrator under this subsection issued on or after
March 1,
2013.